Hi. We are sharing a 15th September Twitter post with supporters as we rapidly approach the STL Licensing deadline for existing S/C operators.

The Save Self Catering in Scotland Team

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I was one of four petitioners of the original Judicial Review team that challenged the @Edinburgh_CC’s implementation of the Short Let Legislation - specifically licensing policy. It was found to be left wanting and was deemed, in places, unlawful. #SaveSC 

Ralph Avebuch (JR petitioner)

(SOURCE: https://threadreaderapp.com/thread/1702699554863210684.html)

We've been progressing on a new legal front tackling Planning. Again in Edinburgh, the outcome will likely have an impact across Scotland's Council Planning departments.

What we've come to call Judicial Review 2 (JR2), is being led by two of our original team (Iain & Louise) and we thought it essential to bring you up to speed. The following update comes from Iain Muirhead.

The SSC Team

Ralph, Iain, Anna, Louise, Craig & Glenn

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Iain Muirhead

Follow and support us on Twitter @SaveSCScotland

PLEASE NOTE: A version of this document that will likely be updated as we learn new information can be found here.

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STL Judicial Review Frequently Asked Questions

1. The Judicial Review found the 'presumption of rebuttal' policy in the City of Edinburgh Council's short-term let licensing policy to be unlawful. This means there shouldn't be an automatic presumption that someone in a tenement building should not get a licence. The planning permission process should consider the property's suitability instead.

2. Certain aspects regarding temporary licences and requirements for carpets were also found to be unlawful. Some specific clauses in the policy were struck out as a result, mainly those related to the presumption of rebuttal.

3. The chances of obtaining a licence for those who have planning permission have likely increased following the judicial review. However, the team is waiting to see how the City of Edinburgh Council will react to the requirement to remove the presumption of rebuttal.

4. The case might have nationwide implications beyond the actual findings of Lord Braid.

5. The team is considering challenging the application of the planning control area policy, but it is not possible to challenge the legislation itself.

6. Despite pressure from the Crowd Justice team and the Association of Scotland's Self-Caterers, there is no immediate suggestion from the Scottish Government of further delays or pauses in the Short-Term Let licensing process.

7. Legal costs were awarded to the Petitioners but the exact amounts involved and when they may be received is yet to be determined.

8. The Judicial Review has no direct impact on historic planning applications. However, the application of National Planning Framework 4 is a significant hurdle for any short-term let operator in applying for planning permission. Options for a further legal challenge in light of this are being considered.

9. It remains legal to apply for a Short-Term Let Licence. The City of Edinburgh Council is updating its policy to reflect Lord Braid's judgement.

10. Even if further legal challenges are successful, pursuing a Certificate of Lawfulness at this stage would be beneficial.

11. In the affidavits supplied to Lord Braid by the City of Edinburgh Council, senior officials stated "Well-run businesses with properly maintained and managed properties are likely to satisfy the requirements of the Respondent’s STL Licensing Scheme and to have a reasonable prospect of obtaining a licence for STL secondary letting in a tenement or with shared main door accommodation. The affidavit of the First Petitioner raises matters which, if made in the context of an application, would require careful consideration as part of the application’s overall merits."

Questions

Q. Could you please provide, as simply and clearly as possible, what the judicial review deemed as unlawful?

The best summary of the judgement can be found here.

Rosie Walker, Partner and Head of Litigation at Gilson Gray said: 

“The court found that the City of Edinburgh Council’s short-term let licensing policy was unlawful at common law and in breach of The Provision of Services Regulations 2009 for a number of different reasons. Most strikingly they found that it was not for the Council, as Licensing Authority, to decide that a licence should not be granted just because a property is in a tenement.”

“The Court of Session today issued Lord Braid’s decision in a Judicial Review of the City of Edinburgh Council’s Short Term Lets Licensing Policy. The challenge was successful with the Court finding that the Council’s policy is unlawful at common law, in respect of the rebuttable presumption, the lack of provision for temporary licences and the requirement to supply floor coverings. The court also found that the policy breaches The Provision of Services Regulations 2009 regulations.”

In practical terms, the main ruling was that the ‘presumption of rebuttal’ was deemed unlawful. Therefore, there should not be an automatic presumption that if you are in a tenement, you should not get a licence. Lord Braid ruled that the intent of the overall legislation is that the planning permission process would consider the suitability of a property.

There were also aspects of temporary licences and the need for carpets that were deemed unlawful.

An order hearing was subsequently held by Lord Braid. The decision on the orders was broadly to accept CEC’s argument that specific clauses of the policy should be struck out and the rest left.  The removed parts are paragraphs 2.9, 4.13-4.16, and 4.18-4.20 and Standard Condition 9 in Appendix 2. 

This means that specific provisions within the policy, mainly in relation to the presumption of rebuttal were deemed unlawful.

Q. We were previously concerned that even with planning we might not get a licence. Will this change?

Yes, the chances of obtaining a licence should have improved now as a result of the Judicial Review. A caveat is we await how CEC will respond to the requirement to remove the presumption of rebuttal.

Q. Are there any nationwide implications from the court case beyond the actual findings of the judge regarding Edinburgh Council's overreach?

Yes - please refer to this letter written by the ASSC

Q. What are the team’s thoughts about planning control areas, e.g. Edinburgh? Is there any discussion of challenging these, and/or how planning/change of use decisions are being taken (beyond the ASSC’s challenge regarding Cllr Chas Booth)? 

The team believes planning control areas were intended to control the increase of short-term lets in key pockets of Edinburgh. However, in practice, this is being used as a mechanism to almost eliminate short-term lets, with a preference for awarding planning permission to aparthotels. This will significantly reduce the choice and availability of self-catering accommodation, make it very difficult for mid-term rentals (such as corporate rentals), and have a severe impact on events like the Edinburgh Festivals.

For these reasons, consideration is being made to challenge the aspect of how the control area is being applied. However, it is no longer possible to challenge the control area legislation.

Q. What is the Petitioner team's thinking regarding another (welcome) delay? Likely, possible, or unlikely?

Despite pressure from the Petitioner team and the ASSC, currently, there is no indication of a further delay or pause of licensing at this stage.

The ASSC has requested a further delay many times and the latest letter from the Industry Advisory Group also requests this.

Q. Did the Petitioner team win legal costs and for those of us who invested £1000+ in bringing this action, will this be shared?

Yes, legal costs were awarded. The amount of legal costs awarded rarely exceeds 60% of the total costs spent, which was approximately £200,000. CEC managed to obtain a 15% reduction in one part of the legal cost award. However, our legal Counsel secured a 50% uplift in another part. It’s a complex process and we await exactly how much the campaign will eventually receive. We would like to use part of the remaining funds for Phase 2 of this challenge, specifically focusing on Planning, but we will consult with backers on the practicalities of this.

To be clear, the JR team has no access to funds. These are currently held by our legal team in client accounts. Any funds remaining will be passed back to Crowd Justice to be reallocated to another case, refunded if donated £1,000 or over, with anything remaining going to charity.

Q. What impact will the JR have on the 165 Edinburgh planning applications submitted in good faith before the original April deadline and which were rejected? 

The City of Edinburgh Council seems to be using the newly adopted National Planning Framework 4 policy to refuse all applications for planning permission before even getting to the licensing stage.

Q. I’m just lost regarding timelines around Edinburgh properties. Do we still need to apply for planning permission and if so when is the deadline?

There is no direct impact to historical planning applications as a result of the Judicial Review. A further legal challenge is being considered. Again, if successful, this would not directly impact on historical applications. However, options are being considered to professionally challenge applications, in particular the application of NPF4.

To be clear, NPF4 is by far the biggest hurdle now facing any short-term let operator who is considering applying for planning permission. This policy requires an applicant to demonstrate that “the loss of residential accommodation isn't outweighed by demonstrable, local economic benefits.” Despite this being a national policy, the Scottish Government has stated it is for local authorities to decide how they apply this locally. The City of Edinburgh Council (CEC) has no guidance on what this means, and the Scottish Government has stated it is for local authorities. We think there may be scope to challenge this policy. The first step would be for anyone refused a Certificate of Lawfulness to appeal to the DPEA. There may then be scope to challenge this at the Court of Session.

A study by MKA Economics, commissioned by CEC, is now being cited by some to show that the economic benefit of a permanent resident outweighs the economic benefit of short-term lets. We believe this study falls well short of being comprehensive or thorough and requires further analysis. As such the ASSC and STL Solutions are currently evaluating proposals to co-commission a further economic study.

Q. My question is around clarifying what we need to apply for when applying for planning. 

There is no silver bullet to this question. Legal challenges to planning are being considered. Our advice right now is to start preparing and submit closer to the due date. There are potentially some strategies to use to extend the period of trading if you believe you may be unsuccessful.

Q. Is it illegal or legal to not apply for a licence where the policy to evaluate the application is illegal?

It is still legal to apply for a licence. CEC are updating their policy in the meantime.

If you were operating prior to 5th Sep 2022, when the short-term let planning control area was introduced

AND

Your operation had no material change of use - a Certificate of Lawfulness can be applied for, rather than a planning application.

Q. Is there any value or a legal need to apply for a Certificate of Lawfulness at the moment?

It’s a good question. We do not believe there is a legal ‘need’ per the wording of the licensing order. This is something we are seeking legal advice on.

However, on balance, despite potential legal challenges, attempting to obtain a Certificate of Lawfulness would be a good position to be in. Even if legal challenges were successful, a Certificate of Lawfulness would take away any doubt in future.

We wanted to give our many backers a quick update...

A By Order Hearing took place in the Court of Session with Lord Braid on Thursday 22^nd June.  

The decision on the orders was that specific clauses should be struck out from the City of Edinburgh Council's (CEC) Short Term Let policy. The removed parts are paragraphs 2.9, 4.13-4.16 and 4.18-4.20 and Standard Condition 9 in Appendix 2.   

We were awarded 85% expenses and 50% additional charges. Right now we have no detail on when this may be returned to the campaign but we have been told it can take many months. Expenses are based on a set Court tariff and not the actual expenses charged by solicitors to clients. CEC had argued that we should receive no expenses. Lord Braid said that the level of support for the Crowd Justice campaign showed how important the case was.  

Possible Appeal 

CEC now have 21 days from 22/6/23 i.e. by 13^th July ‘23 to indicate whether they will appeal.   

What CEC now need to do? 

CEC’s Counsel undertook that the FAQs setting out details on its Short Term let Licensing scheme, would be updated to reflect Lord Braid’s judgement regarding renewals. They also undertook that, subject to an appeal, they would revisit the policy but gave no commitment on timescales. In the meantime, they should now publish the redacted version of the policy on their website.  

We must wait and see if Edinburgh Council will appeal.

We continue to press The City of Edinburgh Council and Scottish Government regarding the impact on business, tourism and livelihoods of their planning and licensing legislation and the significant harm we are convinced the two areas of legislation will cause if left unchanged.  

We can only apologise for the lack of communication in recent weeks but we are faced with a complex set of moving parts and are keen to ensure that the information we do provide is accurate and salient.

Thank you again for your support over these many months.

The Judicial Review Team

Louise, Ralph, Anna, Iain, Glenn & Craig

A victory for law and common sense

8TH JUNE 2023: Today it was learned that the Court of Session has decided in favour of the Petitioners following a 2-day hearing on the 11th & 12th of May. As the largest crowdfunded case in the history of the UK, the petitioner team are deeply grateful to the many small, local businesses that supported the campaign financially in such uncertain times. That grassroots support made it possible for us to take this action, challenging both Licensing & Planning surrounding Short Term Lets in Edinburgh and the potential wider impact across urban and rural Scotland.

We have yet to fully digest the detail of the decision but we hope that this will give common cause to both the Scottish Government and City of Edinburgh Council to seek a fresh approach that aims to collaborate and work with local operators of self-catering accommodation, recognising the many good things it brings to the economy and people of Scotland.

BACKGROUND

The Judicial Review team is made up of four petitioners with the close support of Iain Muirhead and Anna Morris. The petitioners are Ralph Averbuch, Glenn Ford, Louise Brook & Craig Douglas. This team came together in the closing stages of 2022 when, faced with uncertainty over the future of full and part-time operators of Short Term Lets in Edinburgh and Scotland, it was decided that legal action to challenge the interpretation and application of the new STL Licensing Law was unavoidable.

Update on Save the Self-Catering Sector in Scotland

We learned over the weekend that our Judge, Lord Braid, who presided over two days of the Judicial Review on the 11th & 12th of May, will release his judgement on Thursday the 8th of June at 12, noon.

Whilst we remain confident of a positive result ultimately we are in the dark until that time.

We wanted to, once again, thank everyone who has backed our fight for a fair hearing and a chance to tackle the major issues which remain with STL Licencing AND planning in Scotland. Since the powers came into force late last year, media reporting makes it abundantly clear, there's a disconnect between the words spoken by representatives of the City of Edinburgh Council and the Scottish Government versus what's happening on the ground.

It's also affecting far more than operators in Scotland's capital, with a steady stream of updates from the Highlands and Islands, East Lothian and Glasgow of Councils using the pretext of STL Licensing as a lever to achieve objectives which bear little resemblance to the original conceit - that this was only about health & safety. It's so clearly much more than this!

As soon as we know the outcome of the judgement we will share it with you.

We could not have done this without your support. 

The Team

Ralph, Iain, Louise, Glenn, Craig, Anna

In case you're not aware, the Save Self Catering in Scotland campaign has presence across a range of social media. 

On FaceBook you can find our campaign page here. This is very much aimed at allowing members of the self-catering community across Scotland to communicate on recent developments.

If you're not a big FacBook user, we are also on Twitter. This is much more about having a chance to put our perspective on issues on a wider public-facing platform. It isn't without challenges as there are small but very determined numbers on the platform that spout hearsay and accusation, though rarely backed by any empirical evidence. The more of our community that can positively engage on this issue the better.

We are also on Instagram, though this has primarily been a public-facing identity where we have shared a range of real-world stories from operators all over Scotland. It's there seeking to dispel the prejudices and hearsay as fact which has so dominated the debate over the last seven years. 

Lastly, we're on the web. 

The Petitioner Team

Help us hit 1000+ backers 

We've done it. We have fully funded our campaign with many people's help and a staggering number of pledges. Your help... Every like, every reshare. It all helped get us there. 

But we really want everyone who wants to, to join with us. No matter how small, please add yourself to the campaign backers if you believe in what we are trying to do. More so now than ever, there is strength in numbers and we want to try and hit 1,000 backers by this Thursday, this coming week, when the Court if Session hearing begins. So please stand up and be counted. Doesn't matter how small your contribution. What matters is you're with us in this fight for justice for anyone simply trying to protect their livelihood. 

The procedural hearing for the Judicial Review is set to take place later this month, on 25th April.

The actual hearing is then taking place on the 11th and 12th of May. It could potentially take up to three months to receive the judge’s decision on our case.

As we are acutely aware, we have not reached our target to fully fund this case... But we are close. We just reached 77% of target today.

When we began this journey, few on our side of the argument felt there was much hope in seeking to take on the powers that be. With about a month to go before we hold a hearing in the High Court, we are at 75% of the target we must achieve to pursue our petition.

Few of us thought we'd get this far but it's down to a bitter realisation that something at the heart of Scottish & local Government is simply not right. How can it be that so much policy and so many life-altering decisions are being made on the flimsiest of so-called 'evidence'? Evidence, which when challenged, turns out to be smoke and mirrors based on hearsay and tittle-tattle and very little to do with scrupulous, independently verified data. 

Few have explicitly said it publicly, but we are acutely aware that many local councillors of all political hues have been led to believe that shutting down self-caterers can somehow solve an affordable housing crisis going back generations. We are being portrayed as the source of an issue that's actually generations old. Chronic mismanagement and poor policy-making caused the shortage of affordable homes.

One thing I can say with cast-iron certainty is that the legitimate S/C operators being fed to the wolves by planning committees in Edinburgh and Glasgow (and others too) will have absolutely no impact in any measurable sense at all on the chronic issue of affordable housing in Scotland. But it will do untold damage to Scotland's reputation and our ability to generate and, importantly, retain in-country the tourist spend that flocks to our shores.

Politics has not fared well in the era post the dot com boom and the seemingly inexorable dumbing down of complicated arguments. Our local and national government is no less susceptible and has landed on over-simplified black-and-white solutions to highly complex and nuanced issues. But every political era needs a convenient scapegoat and we sure make a handy ready-made target for all the ills they seek to lay at our sector's door. 

This JD is our last chance to fight the fictions with facts... the rumours with robust evidence. We are so close. We must make target. Please spread the word and, if you can, add more to the fighting fund.

Ralph, Louise, Glenn, Craig, Iain & Anna

The Petition Team

Delighted to report to our backers that, following a review of projected costs and the balance of views from our legal team, the petitioners and our support team feel comfortable in reducing the figure we believe will be needed in order to cover the costs of going all the way to a court hearing of our Judicial Review this May. 

We are closer than ever to our goal, but we still need support.

When we began, our stretch figure was at an eye-watering £500,000, reduced to £350,000 shortly thereafter, once we got a better handle on likely legal costs. Following our most recent review, we've revised it again to reflect what we think is needed. That's £300,000. 

Bear in mind this total includes an estimate of legal costs that would be required to be paid in the event we lose. If we are successful, anyone who has contributed cumulatively over £1,000 will receive a pro rata proportion of their donation back.

With the recent rate of contributions, we now think we are on track to achieve justice.

Thank you for your support to date. It's been a huge boost to know we have over 400 backers and growing every day. Justice may come at a price but we must pursue it whilst we still have the chance to save our sector. As always, please share news about the campaign with your contacts. We need everyone's help in spreading the word.

The Team

Ralph, Louise, Iain, Glenn, Craig & Anna

We have answered this question in our FAQs which you can read here but we wanted to remind everyone that if you contribute £1,000 or more during the course of this Judicial Review then you will be eligible for a pro-rata return of funds remaining at the end of this process. Any funds below this threshold will be donated to the very worthy cause Social Bite. 

Social Bite is a charity & social business on a mission to end homelessness – pioneering projects in Scotland & replicating them in cities across the UK. They help to break the cycle of homelessness by offering jobs, innovative housing solutions & free food & drink through their social enterprises & networks. 

Ralph, Louise, Glenn & Craig

We are delighted to report that the petitioners met and discussed the Judicial Review with our legal team earlier today. Following that meeting, it has become clear that our financial exposure (assuming worst-case outcomes) is far less onerous than we were initially led to believe. This means we feel we can now confidently reduce our topline fundraising target to £350,000. 

This is partly due to the decision of the City of Edinburgh Council to not challenge the petitioner's right to put the case before the court. It's also due to the Scottish Government not entering into the case or objecting to our right to table this Judicial Review. It remains an outside observer. It is only the court now that decides whether the petitioners can go forward to arguments and, ultimately, a hearing later this year.

That said, nothing is absolutely guaranteed and we always need to be aware of possible unforeseen circumstances which may impact the case. However, for now, we feel this is a much more realistic target representing the true total costs. Even better news, this is our worst-case assumption and should the petitioners win and be awarded costs, you will be eligible for pro rata compensation of your donations where your support was £1,000 or more.

Thanks for your support to date. It means the world and we are deeply grateful.

Want to refresh your memory on the who, why and where of this case? Check out our FAQ. Also, check out one of our supporter's personal thoughts on the Planning problems within the City of Edinburgh.

[email protected]

Just a brief update to, again, thank every one of you that has stumped up to support this fight for a Judicial Review of the City of Edinburgh's hamfisted approach to what's in effect, a double ban by Planning and Licensing of the vast majority of operators in the city. And it doesn't stop there. We know that three other Scottish authorities are blindly following the lead. We must stop this economic self-harm from taking hold before it does huge damage way beyond the self-catering ecosystem. Meantime please share some of these stories with your contacts and colleagues. The harm being done to real people needs to be understood.

Twitter.com/SaveSCScotland

Linkedin.com/groups/12771191/

Instagram.com/savescinscotland/

facebook.com/SaveSelfCatering 

[email protected]

It's not just about securing the funding for this fight for fair treatment. It's also about ensuring that the wider public realises that the businesses under threat of extinction are locally owned and operated by people with families and financial commitments. Take a look at some of these messages on our social media channels

• Facebook: Save Self Catering
• Instagram: Save Self-Catering in Scotland
• Twitter: Save Self Catering

• Facebook: Save Self Catering
• Instagram: Save Self-Catering in Scotland
• Twitter: Save Self Catering

It seems like an amazing figure. It is. It gives us the ammunition to fight for fair treatment for everyone that feels under concerted attack for simply operating a small short-stay S/C business. But this is just the start. For details on any burning questions you might have had please check out this FAQ

Meantime, please tell any and all of your contacts in self-catering or affected by the new laws to consider supporting this campaign. We will need it!

Ralph

Speaking on behalf of the petitioners and our team of supporters, I just wanted to say a huge thanks to the individuals and organisations which have recognised the injustice of how our sector has been treated and how critical it is that we bring to light the unethical actions of those tasked with creating a new Licensing scheme and retrospective Planning regime. We are now very well placed for the next stages of the Judicial Review. But we cannot be complacent. Only a small proportion have chipped in to date. We need everyone who will be affected to support the cause and take this to a Hearing. 

This is an amazing place we've reached. We can, we will, we are fighting for our right to operate - to exist as a long-standing part of the wider hospitality sector.

Ralph

Thank you so much for the recent pledges. We are so grateful and encouraged by your support in recent days which has taken us comfortably through our Stage 1 fundraising target. It's a phenomenal start. But it is just that... a start. We may need a lot more to take this challenge to its conclusion. Every operator who wants to challenge the destruction of their livelihood must join the fight.  

[email protected]

If you want to contact the Petitioners you can email [email protected]

Three days into 2023, I thought it was worth updating everyone on the course of our fight for the self-catering sector's long-term survival in Scotland. The great news is we are very close to where we need to be for Stage 1 of this legal battle (see main text). The not so good is that so few of us have come forward to fund this campaign. That may be due to the timing as we launched this effort mere days before Christmas.

Forgetting all the operators who are not registered as Self-Catering Units (but will be affected nonetheless), there are just shy of 1,500 in Edinburgh, a very large number of whom are, under current City of Edinburgh plans going to be refused the ability to continue operating. As of now, 116 of us have stepped up to back this Judicial Review of Edinburgh's tactics.

Bottom line, we need everyone with skin in the game to step up and join us in fuelling this fight. To those that have, I can only thank you for your fortitude and for joining the battle for fair and just treatment. Join the fight and fund this battle for your and our sector's, future.

We have made an incredible start to our fight for a fair hearing and Judicial Review of what amounts to a death sentence for self-catering in Edinburgh under its one-two punch of Planning & Licensing. It is so clearly being used as a blunt tool of overt destruction of people's livelihoods. This will be the last update until the 27th. Meantime, if you want to message the petitioners we can be contacted at [email protected]

Taking legal action is expensive. Any support is welcome but, no matter how good our case may be, if we don't get the backing we need, when we need it, we will be stopped in our tracks. Every S/C operator needs to consider what they would be willing to spend to keep operating. In my case, it is in the thousands.

To contact the petitioners you can email us at [email protected]

Be in no doubt. To get justice and have an opportunity to contest the lies we have endured for years we need everyone who cares about a future in our industry to step up. We have got to our target in the blink of an eye, but the reality is this is just the start of the battle and to take the fight to victory we will need a much bigger fighting fund. If we don't we won't. Pledge now.